High court ruling opens way for MoD to be sued over soldiers' deaths

Court questions whether 'combat immunity' is a valid defence where soldiers are sent into battle without the proper equipment

Soldiers inspect a Snatch Land Rover near Basra in 2006. The high court has refused to rule on their suitability because it says the European human rights law does not extend to Iraq. Photograph: Essam Al-Sudani/AFP/Getty Images

The British military could be sued for failing to train and equip soldiers fighting in war zones properly following a high court ruling that has questioned whether ministers can rely on "combat immunity" to defend such cases.

The high court said the Ministry of Defence was wrong to argue that civil claims brought against it because of "personal injury or death of members of the armed forces" had no merit "because the damage was incurred in combat".

Mr Justice Owen refused a ministry application to throw out several claims of common law negligence and said the issue could be decided at trial.

In the same ruling, however, the judge ruled against families seeking compensation after three soldiers were killed in Iraq when their Snatch Land Rovers were hit by hidden bombs.

Lawyers for the families said that the vehicles were completely unsuited for Iraq and that the ministry had an obligation, under Article 2 of the European Convention on Human Rights, to take reasonable steps to provide troops with proper protection.

The judge said the incidents in Iraq were beyond the jurisdiction of the convention, which extends only to the UK and other European nations.

Both of Mr Justice Owen's rulings are likely to be taken to the court of appeal as the judiciary attempts to scrutinise and redefine the rights of soldiers, and their families, to seek compensation from the armed services.

During a three-day hearing in May, the high court heard about a series of incidents that took place in Iraq between March 2003 and August 2007. Three of the episodes involved attacks on Snatch Land Rovers that killed British soldiers: Private Phillip Hewitt, 21, of Tamworth, Staffordshire; Private Lee Ellis, 23, of Wythenshawe, Greater Manchester; and Lance Corporal Kirk Redpath, 22, of Romford, Essex.

Sue Smith, Hewitt's mother, led the families' campaign, insisting the MoD had failed the soldiers under human rights laws because the lightly armoured Land Rovers offered completely inadequate protection.

Her lawyer, Jocelyn Cockburn, said: "Sue Smith and the other Snatch Land Rover families have fought for years to bring this matter to the attention of the courts. Their main motivation was to have these vehicles removed from use so that other soldiers would not be killed unnecessarily. They achieved that.

"Now the families are appealing [against] this ruling because they want the MoD to be accountable for allowing their loved ones to go into combat in vehicles that were manifestly unsuitable for the job.

"This is important because, if the MoD knows it has a legal duty to protect soldiers, then in future the safety of soldiers will be a priority – as it should be."

Ms Smith added: "It cannot be right that British soldiers are considered to be outside the jurisdiction when they are sent to fight for their country."

Separately, the judge was asked to consider claims that, under common law, the MoD had been negligent to send Ellis into combat without the proper equipment. A similar case has been brought by the families of three soldiers who were involved in a "friendly fire" incident in Iraq involving two Challenger tanks. One of the tanks fired on the other during the confusion of battle – killing Corporal Stephen Allbutt, and injuring Troopers Daniel Twiddy and Andrew Julien.

In this case, lawyers argued that the MoD should have provided better surveillance devices so the tanks were able to identify each other more easily. Relying on the principle of "combat immunity", the ministry argued that this was a complete legal defence for incidents that took place in war zones, and that the provision of equipment was an issue for politicians, not just the military. The judge disagreed. "There can be no doubt," he said, "that the [MoD] is under a general duty to provide adequate training, suitable equipment and a safe system of work for members of the armed forces."

He said that the negligence claims arising from the Challenger tank case, and the claim brought on behalf of Ellis's 10-year-old daughter Courtney, could go to trial.

Shubhaa Srinivasan, the lawyer representing the Challenger tank victims, said: "It is a real victory for them and for all service personnel. The judgment sends a clear message that the MoD cannot renege from the military covenant by saying it does not owe a duty of care to properly equip our soldiers."

A ministry spokesman said: "The courts have upheld our arguments on Article 2 of the ECHR. We will be seeking leave to appeal against the decision about liability claims for equipment provision."